Carl Gutmann & Co. v. Dan River Mills, Inc.

Order entered July 10, 1967, unanimously reversed, on the law and on the facts, without costs or disbursements to either party, and the motion to strike the affirmative defense of the Statute of Limitations is denied. The complaint contains allegations which sound either in indemnity or in breach of warranty, or in both. While the plaintiff indicates that the action is one merely for indemnity, that does not make it so. The allegations in the *647complaint govern and, as indicated, under the complaint in this action, a recovery can conceivably be had in indemnity or breach of warranty. What form…